No. 1750 October Term 1979, Appeal from the Judgment of Sentence in the Court of Common Pleas of Lycoming County, Criminal Division, No. 79-10,091.
Gregory V. Smith, Williamsport, for appellant.
Robert Banks, First Assistant District Attorney, Williamsport, for Commonwealth, appellee.
Spaeth, Brosky and Van der Voort, JJ.
[ 279 Pa. Super. Page 20]
This appeal arises from judgment of sentence imposed upon a conviction of receiving stolen property.
On January 19, 1979, appellant, a truck driver, picked up from his employer in Texas a trailer loaded with packaged beef to be transported to a consignee in Auburn, Maine. The purchase price of the beef was $50,589.63. On January 20, while en route, appellant telephoned his supervisor to report that his tractor had broken down near Effingham, Illinois. The supervisor instructed appellant to stay with the trailer, and said that another driver would be sent within two days to relay the load to Auburn. The supervisor also asked appellant to call again on the 21st. Appellant did not call again. Instead, he repaired his tractor, and proceeded with the trailer of beef to his home in Lycoming County, Pennsylvania. There, on January 22 and 23, appellant sold beef out of the trailer to friends and neighbors for 30 to 60 cents per pound, depending upon the cut of beef. Purchasers of the beef paid by cash and check. Those paying by check were instructed to make their checks payable to appellant or to fictitious companies. On the 23rd, a state trooper, attracted by the crowd congregated along the roadside by appellant's trailer, stopped to learn the nature of appellant's activities. Appellant told the trooper that he was reselling bruised beef that he had bought from a processing company in Texas. Later the same day he gave the police other false explanations regarding his ownership and possession of the beef, and produced a false bill of lading. He was arrested and charged with theft by unlawful taking or disposition, 18 Pa.C.S.A. § 3921 (1973), and receiving stolen property, 18 Pa.C.S.A. § 3925 (1973). After his arrest, the police recovered from appellant approximately $4,356 in cash and $1,305 in checks as proceeds from the sale of the beef. The relatively small portion of the load of beef not sold was delivered by another driver to Auburn and sold for $7,415.69.
At trial, appellant testified that the beef was to be delivered fresh in Auburn, but the refrigerator unit in the trailer
[ 279 Pa. Super. Page 21]
ran out of fuel while his tractor was broken down near Effingham and the beef froze and so he decided to sell the beef to reduce the loss his employer would suffer if it were delivered to Auburn and rejected by the consignee. Appellant also testified that he intended to remit to his employer all proceeds from his sale of the beef. A food inspector from the State Department of Agriculture testified, however, that he had seen the beef appellant was selling, and in his opinion the beef had never been frozen. The Commonwealth also presented evidence that appellant's employer had not given appellant authority to sell the beef and did not know until afterwards that he had done so.
The jury acquitted appellant of theft by unlawful taking or disposition but convicted him of receiving stolen property. Appellant now argues that this verdict shows that the jury must have believed that the beef he sold was not stolen. The jury must have so believed, appellant argues, because the uncontradicted evidence showed that he was the only participant in the alleged offense, i. e., the only person who took the beef from his employer, transported it to Pennsylvania, and sold it.*fn1 If the beef was stolen, in other words, appellant is the only person who could have stolen it; since the jury acquitted him of theft, it must have believed that the beef was not stolen. Since the jury believed that the beef was not stolen, appellant's argument continues, the Commonwealth failed to prove that appellant received stolen property, and the jury's verdict to the contrary was mistaken.
The fault with appellant's argument is that "[a]n acquittal cannot be interpreted as a specific finding in relation to some of the evidence." Commonwealth v. Carter, 444 Pa. 405, 408, 282 A.2d 375, 376 (1971), quoting ...